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'Legal professional privilege' 2: Litigation privilege

'Legal professional privilege' is a general term that describes both: 1) legal advice privilege and 2) litigation privilege. The former attaches to communications between solicitor and client only, but the latter can protect reports by third parties prepared on the instructions of a client for the purposes of litigation. In the former case, the privilege attached to all communications whether related to litigation or not, but in the latter case it attaches only to documents or other written communications prepared with a view to litigation.

This note explains litigation privilege:

Basic principles

Communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.

Adversarial proceedings

Notepad and pen Proceedings must be adversarial in nature. For example, in Re L (A Minor) (Police Investigation: Privilege)¹, the House of Lords upheld a first instance order that a report prepared by a solicitor on behalf of the mother of the child in the case could be disclosed, because care proceedings are inquisitorial rather than adversarial. It is not clear from Re L how widely the concept of proceedings of an adversarial nature is to be construed. The Lords seems to have taken the approach that there is a distinction to be made between cases in which the parties have control over what is put in front of the court and in which the court must decide which case it prefers, and cases in which the onus is on the court to protect one particular party. However, it would be exceptional for a commercial case not to be considered adversarial.

Dominant purpose

Litigation privilege protects communications with third parties providing that they come into existence with the dominant purpose of gathering evidence in circumstances where legal proceedings are in existence or in reasonable prospect. Use in litigation need not be the sole purpose but, where there are other purposes, use in or in connection with litigation must be the dominant purpose for the creation of the document; the test was formulated by the House of Lords in Waugh v British Railways Board². Waugh concerned an action for negligence. The plaintiff's husband died as a result of injuries sustained in a railway accident involving the collision between locomotives, one of which he was driving. As happened in this case, after an accident occurred it was the practice of his employer, the defendant railways board, to make a brief report to the railway inspectorate about an accident on the day it happened. Soon afterwards a joint internal report ('the joint inquiry report') was prepared. This incorporated statements of witnesses and was also sent to the inspectorate. In due course a report was also made by the inspectorate for the Department of the Environment. The heading of the joint inquiry report stated that it had finally to be sent to the board's solicitor for the purpose of enabling him to advise the board.

To assist with her action, the plaintiff sought discovery of, inter alia, the joint inquiry report. The board refused to disclose the report on the basis that one of the principal purposes for preparing it had been so that it could be passed to their chief solicitor to enable him to advise the board on its legal liability and, if necessary, conduct their defence to the proceedings. Accordingly, the defendant said, it was subject to legal professional privilege.

It was held to be clear on the evidence that the report was prepared for a dual purpose: railway operation and safety purposes on the one hand, and for the purpose of obtaining legal advice in anticipation of litigation, on the other. The first purpose was more immediate than the second, but both were of equal rank or weight. So the question was whether the second purpose was enough to support a claim of privilege, or whether it had to be the sole purpose, or the dominant purpose, or the main purpose.

According to the House of Lords, the test is definitively one of dominant purpose. In deciding whether a communication is subject to 'litigation privilege', the court has to consider objectively the purpose of the person or authority that directed the creation of the communication on the basis of the evidence.

Contemplated litigation

Mallet A party must be aware of circumstances rendering litigation between itself and a person or class of persons a reasonable prospect. USA v Philip Morris Inc and British American Tobacco (Investments) Ltd³concerned a claim by the United States against a number of tobacco companies alleging that since 1953 the tobacco companies had engaged in an unlawful enterprise to deceive and defraud the American public, and consumers of cigarettes, about the health risks of smoking and about their knowledge and attitude to them. In support of litigation in the United States, letters of request were issued seeking evidence for use at trial from F, a partner in a firm of London solicitors. These were issued on the basis that F's evidence was necessary because he had played a central role on the creation and implementation of document destruction policies to protect one of the defendants, British American Tobacco (BAT) and its affiliates, including the UK company BATCo and other members of the BAT group. BATCo and F resisted on grounds of, amongst other things, litigation privilege as covering all communications passing between F and BATCo and other members of the BAT group. An issue that arose for consideration was the extent to which litigation must be in contemplation in order to claim privilege in respect of confidential communications.

In Philip Morris the Court of Appeal cited to their own established authority in Re Highgrade Traders⁴ that litigation privilege may be claimed in respect of documents brought into being at a time when litigation is 'reasonably in prospect'. Earlier, explaining the policy behind this test at first instance in Philip Morris, Moore-Bick J had given further guidance on what the measure of 'reasonably in prospect' should be:

It has been recognised on may occasions that there is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court…The point at which litigation should be regarded as sufficiently likely for confidential communications between client and his lawyer to attract privilege on this ground therefore involves striking an appropriate balance between these two factors. The requirement that litigation be 'reasonably in prospect' is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.

The judge added that it would not be enough that there was a general apprehension of future litigation, nor was it sufficient that there was a 'distinct possibility that sooner or later someone might make a claim'. In the Court of Appeal, otherwise stating that Moore-Bick J was correct in his approach, Brooke LJ sought only to take the emphasis away from 'real likelihood'. It was, Brook LJ said, merely a counterpoint to a 'mere possibility' – the judge had not, he concluded, intended to suggest that there must be a greater than 50 per cent chance of litigation.

Importance of protection

Lock Litigation privilege is a very important means to protect the preparation of work for litigation, particularly in life sciences related matters, because it extends generally to the preparatory work of experts whose opinion evidence is so often vital for such cases. However, as with legal advice privilege, parties must be careful to maintain the confidentiality of privileged documents and communications. Even a partial disclosure of information may be deemed to have waived privilege in a document, or wider group of materials more generally.